Inside the First Amendment
By Charles C. Haynes
First Amendment Center
Let's start the New Year with a conundrum as old as the Republic:
When religious convictions clash with secular laws, how far should government go to accommodate religious claims of conscience?
From colonial conflicts over the refusal of Quakers to take up arms to the more recent refusal of Jehovah's Witnesses to salute the flag, American history is replete with robust arguments over the limits of "free exercise of religion" as guaranteed by the First Amendment.
Religious groups have scored victories (using peyote in Native American ceremonies is legal) and suffered defeats (practicing polygamy is illegal). But in all of these battles, attempts by the state to burden religious practices are always hotly contested - and that's as it should be in a nation founded on religious freedom.
In 2013, religious objections to government laws and regulations will once again provoke vigorous public debate, countless court challenges and really tough decisions over whether and when government should accommodate religious claims of conscience.
Consider that some 30 lawsuits have been filed by religious groups and individuals challenging the contraceptive- coverage mandate in the Affordable Care Act (a.k.a. Obamacare). Some of these cases involve religiously affiliated organizations (such as Catholic hospitals) and others religious owners of for-profit businesses. Churches and other houses of worship are already exempt.
At the moment, the Department of Health and Human Services has imposed a moratorium on enforcement of the contraceptive-coverage mandate until August, giving the government time to reconsider the regulations as applied to nonprofit religious employers.
But even if the rules are rewritten to exempt religiously affiliated organizations (and the prospects that this will happen are highly uncertain), the mandate will still apply to for-profit businesses run by religious people who object to providing the coverage because it violates their faith.
Simply put, does the government have a compelling interest in requiring a religious employer to pay for insurance that provides drugs and services that the employer finds religiously objectionable? Or do religious individuals and groups have the right to be exempt from a government mandate that they believe substantially burdens their free exercise of religion?
Parallel questions are at the heart of the same-sex marriage debate, the other major public-policy battle involving a conflict between civil laws and religious convictions that will be widely contested in 2013.
With same-sex marriage now legal in nine states plus the District of Columbia - and with the U.S. Supreme Court poised to rule on the issue by June - some religious groups are gearing up for a multi-front fight to win exemptions from state regulations requiring recognition of same-sex married couples.
Religious organizations opposed to same-sex marriage say they will argue for new "conscience clauses" and other legislative accommodations that will protect them from having to recognize same-sex relationships.
If no such exemptions emerge, some religious leaders warn, religious groups will be forced to make difficult choices to preserve their religious freedom. They cite the decision by Catholic Charities in Boston in 2006 to end their involvement in foster care and adoption rather than provide those services to same-sex couples as an example of what will happen elsewhere if religious requests for exemptions are not granted.
It goes without saying that Americans are deeply divided over the merits of religious demands for accommodation in both of these public-policy fights.
But I would argue that it is in everyone's best interest for lawmakers to do the hard work of finding ways to uphold the free exercise of religion as much as possible even as they enact laws they believe serve the common good.
As James Madison argued, the right of every individual to follow the "dictates of conscience" is an inalienable right - a right that government has an obligation to protect unless an overriding societal interest trumps the religious claim. The line the government draws on the religious freedom of some today may be drawn on many others tomorrow.
Forcing citizens to make what the Supreme Court once called a "cruel choice" between following their God and conforming to a government law or regulation that violates their faith may sometimes be necessary, but in a country committed to religious freedom it should always be rare.